1. The case was referred to the Court, in accordance
with the provisions applicable prior to the entry into force of Protocol
No. 11 to the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”), by Peter Hoppe, a German national (“the
applicant”), on 27 July 1995 (Article 5 § 4 of Protocol No. 11 and
former Articles 47 and 48 of the Convention).

2. The case originated in an application (no. 28422/95)
against the Federal Republic of Germany lodged with the European Commission
of Human Rights (“the Commission”) under former Article 25 of the
Convention by the applicant on 27 July 1995.

3. The applicant alleged, in particular, that
the German court decisions concerning his right of access to his daughter
and the awarding of parental authority breached his right to respect
for his family life, that he was denied a fair hearing in the relevant
proceedings and that he had been subjected to discrimination. He invoked
Articles 6, 8 and 14 of the Convention.

4. The Commission declared the application partly
admissible on 14 January 1998. In its report of 10 September 1999 (former
Article 31 of the Convention) [Note by the Registry. Copies of the report are obtainable from
the Registry], it expressed the opinion that there had been no violation
of Article 8 of the Convention (sixteen votes to ten), no violation
of Article 6 § 1 of the Convention (nineteen votes to seven) and no
violation of Article 14 in conjunction with Article 8 of the Convention
(unanimously).

5. Before the Court the applicant was represented
by Mr P. Koeppel, a lawyer practising in Munich (Germany). The German
Government (“the Government”) were represented by their Agents,
Mrs H. Voelskow-Thies, Ministerialdirigentin, of the Federal Ministry of Justice,
at the initial stage of the proceedings, and subsequently by Mr K. Stoltenberg, Ministerialdirigent,
also of the Federal Ministry of Justice.

6. On 8 December 1999 the panel of the Grand Chamber
determined that the case should be decided by a Chamber (Rule 100 §
1 of the Rules of Court). The application was allocated to the Fourth
Section of the Court (Rule 52 § 1 of the Rules of Court). Within that
Section, the Chamber that would consider the case (Article 27 § 1 of
the Convention) was constituted as provided in Rule 26 § 1 of the Rules
of Court. Mr G. Ress, the judge elected in respect of Germany, who had
taken part in the Commission's examination of the case, withdrew from
sitting in the Chamber (Rule 28). The Government were accordingly invited
to indicate whether they wished to appoint an ad hoc judge (Article 27 § 2 of the Convention and Rule 29
§ 1). As the Government did not reply within thirty days, they were
presumed to have waived their right of appointment (Rule 29 § 2). The
President of the Chamber designated Mr L. Caflisch, judge elected in
respect of Liechtenstein.

7. The applicants and the Government each filed
observations on the merits (Rule 59 § 1).

8. After consulting the Agent of the Government
and the applicants' lawyer, the Chamber decided that no hearing on the
merits was required (Rule 59 § 2 in fine).

9. On 1 November 2001 the Court changed the composition
of its Sections (Rule 25 § 1). This case was assigned to the newly
composed Third Section.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

10. The applicant was born in 1957 and lives in
Herne. In April 1990 a daughter, Svenja, was born to the applicant and
his wife. In December 1992 the applicant and his wife separated. Svenja
stayed with her mother. In 1994 the applicant's wife instituted divorce
proceedings before the Wuppertal District Court (Amtsgericht). She requested that parental authority over Svenja
be granted to her. The applicant applied for joint parental authority.
Furthermore, the applicant requested that his right of access to Svenja
be determined by a decision of the court. In these and the related proceedings,
both spouses were represented by counsel.

A. The applicant's right of access

11. On 19 October 1994 the Wuppertal District
Court, following hearings on 22 June and 17 October 1994, decided that,
pursuant to Article 1634 of the Civil Code (Bürgerliches Gesetzbuch) (see paragraph 31 below), the applicant
was entitled to see Svenja every second Saturday as well as on St Stephens
day, Easter Monday and Whit Monday.

12. The District Court reaffirmed the principle
that to maintain personal relations between a father and his child,
subject to the best interests of the child, was a decisive factor when
determining the right of access. Against this background, the District
Court considered that the applicant's previous and extensive rights
of access had, at least for the time being, to be reduced to visits
once per fortnight. All the experts heard in the proceedings, i.e. the
psychological expert (report of 14 June 1994), the therapeutic pedagogue
and a social worker of the Barmen Diaconate Institution (Diakonisches Werk), gave evidence that the four-year old child
was exposed to a conflict of loyalty, which she experienced as a strong
pressure, and that she could not cope with this situation. While it
was true that Svenja was fond of the applicant and would be in a position
to see him without fear if her parents managed to create an atmosphere
which took the pressure off her, they had not been able to do so. The
frequency of visits requested by the applicant could not, for the time
being, be handled by Svenja. Although the applicant was aware of his
daughter's problems, he was incapable of accepting restrictions on access
and did not show concern for the child's psychological health. Svenja's
mother had not yet managed to give Svenja such a feeling of security
as to permit her to visit the applicant without feelings of fear. Svenja
therefore needed the intervals of two weeks as times of rest in her
mother's household.

13. On 4 November 1994 the applicant lodged an
appeal with the Düsseldorf Court of Appeal (Oberlandesgericht).

14. On 24 November 1994 the Court of Appeal informed
the parties of its intention to decide in a written procedure. The applicant
stated his preference for an oral hearing.

15. On 9 March 1995 the Düsseldorf Court of Appeal,
after having granted the parties legal aid, amended the District Court's
decision, increasing the applicant's right of access by ruling that
every first visiting weekend per month the applicant was entitled to
see Svenja from Saturday morning until Sunday evening. The remainder
of his appeal was dismissed.

16. The Court of Appeal confirmed the findings
of the District Court according to which a regular visit every second
week best suited the child's welfare. In so deciding, the Court of Appeal
had particular regard to the impact of the parents' difficult relations
which were in conflict with the best interests of the child; the parents
were not yet in a position to have a calm and objective discussion on
questions relating to the right of access. On 21 February 1995 an attempt
at organising a dialogue between the parents at the Parents' Counselling
Service (Elternberatungsstelle) of the local Youth Office (Jugendamt) had failed. As long as there was no agreement between
the parents, any visit was an emotional strain for the child. The applicant's
right of access had therefore to be assessed in the context of the continuing
conflict between the parents.

17. The Court of Appeal further found that the
regular visits decided upon by the District Court best suited both the
applicant's wishes and the child's welfare. The exercise of the right
of access had functioned well since October 1994. In particular, the
child had calmed down and her sleep was no longer troubled. The Court
of Appeal, in agreement with the parties, further considered the report,
dated 19 January 1995, of a social worker of the Elberfeld Diaconate
Institution which had been obtained in the context of parallel proceedings
concerning the exercise of parental authority. According to this report,
no abnormality in Svenja's behaviour had been observed. The Court of
Appeal found that this encouraging development did not yet permit a
significant extension of the applicant's right of access. However, taking
a cautious approach, the visit on the first weekend of every month could
be extended to include one overnight stay. Having regard to the psychological
expert's opinion of 14 June 1994, the objections previously raised by
Svenja's mother were no longer valid. Should Svenja experience any problems,
her mother would have to see to it that the child would consider the
visits with an overnight stay as a usual matter. Any further contacts,
such as overnight stays between every Wednesday and Thursday, routine
telephone conversations and common holidays, were not yet possible,
but could be envisaged in case the decision on access would prove successful.

18. The applicant referred the case to the Federal
Constitutional Court (Bundesverfassungsgericht). On 13 June 1995 a panel of three
judges of that Court refused to entertain the applicant's constitutional
complaint (Verfassungsbeschwerde).

19. The Federal Constitutional Court considered
that the applicant's complaint did not raise any issue of fundamental
importance. In accordance with the case-law of that Court, both the
right of access of a parent not entitled to parental authority and the
right to exercise parental authority granted to the other parent were
protected by the right to respect for family life under the Basic Law
(Grundgesetz).
The possibility, pursuant to Article 1634 § 2 of the Civil Code (see
paragraph 31 below), to limit or exclude the right of access, if it
was necessary for the child's welfare, guaranteed an adequate protection
of the child's constitutional rights and ensured that the courts' decisions
in the matter were governed by the child's best interests.

20. Furthermore, the Federal Constitutional Court
found that the decision of the Court of Appeal did not disclose any
fundamentally flawed views on parental rights. Thus, the Court of Appeal
had considered the child's welfare. The reasoned decision that the visits
could only gradually be extended could not be objected to from a constitutional
point of view. Furthermore, there was no indication that the procedural
requirements were not met. In particular, the applicant had not shown
that, following the failure of a conversation between the former spouses
at the Parents Counselling Service, the Court of Appeal was prevented
from reaching the conclusion that a fresh hearing would not permit any
new findings.

21. On 3 April 1996 the Wuppertal District Court
granted the applicant, at his request, an increased right of access
in that he was now entitled to see his daughter every second weekend
between Saturday morning and Sunday evening and also for a period of
two weeks of summer holidays. The District Court observed that the right
of access such as that presently granted to the applicant enabled him
to be sufficiently informed about Svenja's well-being and to have contacts
with her, and also satisfied his daughter's need to be with her father.

On the appeal of the child's mother, the Düsseldorf
Court of Appeal amended this decision on 28 June 1996. It revoked the
arrangement concerning the summer holidays but extended the applicant's
visiting right to every weekend, after having heard the then six-year
old Svenja, her parents and a representative of the Wuppertal Youth
Office.

B. The proceedings concerning parental authority

22. On 24 October 1994 the Wuppertal District
Court, following an oral hearing on 17 October 1994, granted the parents'
divorce on the ground of the breakdown of the marriage and awarded the
mother, pursuant to Article 1671 of the Civil Code (see paragraph 32
below), parental authority over Svenja.

23. The District Court found that the issue of
parental authority had been determined on the basis of what was in the
best interest of the child. Having regard to the statements of the psychological
expert in the proceedings concerning the applicant's right of access,
the District Court noted that Svenja's mother educated and looked after
her daughter in an atmosphere of love and understanding and took an
intense interest in ensuring her well-being. According to the District
Court, the conditions for the joint exercise of parental authority,
requested by the applicant, were not met. In particular, the parents'
relations with each other regarding Svenja, as well as their relations
with Svenja, were not free of conflict. The applicant was not ready
to accept that Svenja's living situation had changed following her parents'
separation. As a four-year-old child, she needed a stable life without
being torn between different apartments and different styles of education.
The Court noted that, notwithstanding the applicant's interest in Svenja's
well-being, he failed to see that his wishes obstructed Svenja's psychological
development.

24. On 12 December 1994 the applicant lodged an
appeal with the Düsseldorf Court of Appeal.

25. On 15 December 1994 the Court of Appeal requested
Svenja's mother as well as the competent Youth Office to comment on
the applicant's submissions on appeal. On 19 January 1995 the Elberfeld
Diaconate Institution, upon the instructions of the competent Youth
Office, submitted a report. The report contained arguments in favour
of granting the applicant increased access rights. The parties were
given the opportunity to comment upon that report in writing. The applicant
stated his preference for an oral hearing.

26. On 9 March 1995 the Düsseldorf Court of Appeal
refused to grant the applicant free legal aid and dismissed his appeal.

27. The Court of Appeal observed that the mutual
willingness of the parents to co-operate, namely to continue of their
own will to bear common responsibility for their child, was an essential
condition for a reasonable joint exercise of parental authority. It
was obvious that the joint exercise of parental authority by disagreeing
parents would be a source of ongoing litigation which, as experience
had shown, was detrimental to the child. In the present case the parents,
in particular the child's mother, did not accept a sharing of responsibilities.
In the proceedings regarding the applicant's right of access, which
had been pending since March 1993, the parents had continuously had
major disagreements, and the attempt at a dialogue in the framework
of the Parents' Counselling Service had finally failed in February 1995.
Therefore, if parental authority could solely be exercised by one of
the parents, it had to be awarded to the child's mother for the reasons
set out in the District Court's judgment. The applicant had not raised
any serious objections to the reasoning set out in that judgment.

28. The Court of Appeal also considered that an
oral hearing with the parties was not necessary, the relevant facts
resulting clearly from the case-file.

29. On 13 June 1995 a panel of three judges of
the Federal Constitutional Court refused to entertain the applicant's
constitutional complaint.

30. The Federal Constitutional Court considered
that the applicant's complaint did not raise any issue of fundamental
importance. It recalled that when courts had to decide on the attribution
of parental authority following the parents' divorce, they had to balance
the positions of both parents without encroaching upon the parental
priority in educational matters. In such cases, the courts were not,
therefore, subject to the strict conditions in respect of interfering
with parental rights. The legislator and, in application of the relevant
legal provisions, the courts were entitled to transfer the main responsibility
for the education of a child to one parent if the conditions for the
joint exercise of parental authority were not met. Furthermore, according
to the Federal Constitutional Court, the Court of Appeal's view that
the conditions for ordering the joint exercise of parental authority
were not met in the instant case could not be objected to from a constitutional
point of view. Moreover, there was nothing to show that the Court of
Appeal should have conducted further inquiries.

II. RELEVANT DOMESTIC LAW

A. Legislation on family matters in force at
the material time

31. Before the entry into force of the amended
Law on Family Matters, the relevant provision of the Civil Code concerning
custody and access for a child born in wedlock was worded as follows
(Court's translation):

Article 1634

“1. A parent not having custody has the right
to personal contact with the child. The parent not having custody and
the person having custody must not do anything that would harm the child's
relationship with others or seriously interfere with the child's upbringing.

2. The family court can determine the scope of
that right and can prescribe more specific rules for its exercise, also
with regard to third parties; as long as no decision is made, the right,
under Article 1632 § 2, of the parent not having custody may be exercised
throughout the period of contact. The family court can restrict or suspend
that right if such a measure is necessary for the child's welfare.

3. A parent not having custody who has a legitimate
interest in obtaining information about the child's personal circumstances
may request such information from the person having custody in so far
as this is in keeping with the child's interests. The guardianship court
shall rule on any dispute over the right to information.

4. Where both parents have custody and are separated
not merely temporarily, the foregoing provisions shall apply mutatis mutandis.”

“1. If the parents divorce, the family court
decides to which of the parents parental authority over a common child
should be awarded.

2. The court makes that determination on the basis
of the best interests of the child; consideration shall be given to
the child's ties, especially to his or her parents and brothers and
sisters.”

B. Legislation on family matters currently
in force

33. The statutory provisions on parental authority
and access are to be found in the Civil Code (Bürgerliches Gesetzbuch). They have been amended on several
occasions and many were repealed by the amended Law on Family Matters
(Reform
zum Kindschaftsrecht) of 16 December 1997 (Federal Gazette (Bundesgesetzblatt-BGBl)
1997, p. 2942), which came into force on 1 July 1998.

34. Article 1626 § 1 reads as follows (Court's
translation):

“The father and the mother have the right and
the duty to exercise parental authority (elterliche Sorge) over a minor child. Parental authority includes
the custody (Personensorge) and the care of property (Vermögenssorge) of the child.”

“Where parents exercising joint parental authority
are separated not merely temporarily, each parent may make an application
to the family court to be awarded sole parental authority or part of
sole parental authority.

The application shall be allowed where

1. the other parent agrees, unless the child has
completed the age of fourteen and objects to such sharing or

2. it may be expected that the withdrawal of joint
parental authority and its transfer to the petitioner is in the best
interests of the child.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 8
OF THE CONVENTION

36. The applicant complained that the German court
decisions and the proceedings determining his right of access to his
daughter, granting parental authority over his daughter to his former
wife and thereby rejecting his request for the joint exercise of parental
authority, amounted to a breach of Article 8 § 1 of the Convention,
the relevant part of which provides:

“1. Everyone has the right to respect for his
... family life ...

2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society ... for the protection
of health or morals, or for the protection of the rights and freedoms
of others.”

A. Arguments before the Court

1. The applicant

37. The applicant argued that the courts arbitrarily
reduced his right of access. As a result of the conduct of the child's
mother and the court decisions in the present case, he had been deprived
for almost one year of any contact with his daughter. The courts should
have made the child's mother aware of her obligation of offering some
form of co-operation in raising their child despite the fact that the
couple were no longer together. In his opinion, the obstructing of contact
by the child's mother should be considered as a dereliction of her primary
duty to protect the child's rights, in particular on account of
the child's right to a meaningful relationship with both parents. In
his submissions, the restriction and almost complete suspension of his
right of access constituted a breach of Article 8 of the Convention.

38. As to the decision awarding parental authority
over his daughter to the child's mother, the applicant submitted that
the parents should have been able to continue, despite their separation,
to exercise parental authority jointly. As long as he exercised or tried
to exercise his right of access against the will of the child's mother,
the conflicts to which the child was exposed affected her in the same
way or even more than if joint exercise of parental authority had been
granted. The courts failed to take into account the unwillingness of
the child's mother to agree to any form of co-operation to the detriment
of the other parent and contrary to the best interests of the child.
By revoking the joint exercise of parental authority and awarding the
sole parental authority to the child's mother, the courts favoured the
break-down of his contacts with his daughter and thus violated Article
8 of the Convention.

39. The applicant further submitted that in both
proceedings - those concerning his right of access as well as those concerning
parental authority - he had not been sufficiently involved in the decision-making
process. In particular, when taking decisions of such an importance,
the Court of Appeal should have decided after an oral hearing with the
parties and the experts.

2. The Government

40. The Government submitted that the decisions
limiting the applicant's right of access were taken in accordance with
German law and were necessary, in a democratic society, for the protection
of the child's well-being. After having heard the parents, a psychological
expert and a social worker, the District Court restricted the applicant's
access not only on account of the mother's refusal, but also because
of the applicant's conduct. In this respect, the District Court had
regard in particular to the strained relations between the parents which
exposed Svenja to a conflict of loyalty. The Court of Appeal could base
its decision on the first-instance files, amended by the report of the
Elberfeld Diaconate Institution and the parents' written submissions,
which confirmed the continuing conflict between them. In the absence
of relevant new facts, the Court of Appeal was not required to hold
a hearing.

41. The Government further submitted that the
interference with the applicant's right to respect for his family life
was justified under paragraph 2 of Article 8. In a situation of conflict
between the parents, the competent courts could not decide that parental
authority be jointly exercised by them, but had to award parental authority
to one parent. In the present case, the daughter had been living with
her mother since the separation of her parents and, for reasons of continuity,
parental authority had to be granted to her. Moreover, on the whole,
both parents had been sufficiently involved in the decision-making process.
In their view, no hearing before the Court of Appeal appeared necessary,
as the main consideration had been that the strained relations between
the parents did not permit joint custody.

3. The Commission

42. The Commission considered that, in the circumstances
of the present case and in view of the margin of appreciation left to
the Contracting States as to the necessity of a given measure, the imposition
by the courts of their views as to the best interests of the child was
supported by “relevant” as well as “sufficient” reasons. The
interference was therefore, in the Commission's view, proportionate
to the legitimate aim pursued. The Commission added that where, as in
the present case, there was a serious conflict between the interests
of the child and those of one of the parents which could only be resolved
to the disadvantage of one of them, the interests of the child must
prevail under Article 8 of the Convention.

43. Regarding the procedural requirements implied
in Article 8 of the Convention to ensure effective respect for family
life, the Commission considered that the Court of Appeal could base
its decisions on the first-instance files, amended by the report of
the Elberfeld Diaconate Institution and the parents' written submissions,
which confirmed the continuing conflict between them, and that no hearing
before the Court of Appeal appeared to be necessary. In addition, the
Commission found that the matter had been determined with special diligence,
since the decisions of the Court of Appeal were given on 9 March 1995,
that is, not even five months following the hearings before the Wuppertal
District Court on 17 October 1994. In these circumstances the Commission
was satisfied that the procedural requirements implicit in Article 8
of the Convention were complied with and that the applicant was involved
in the decision-making process to a degree sufficient to provide him
with the requisite protection of his interests.

B. The Court's assessment

1. Whether there was an interference with
the applicant's right to respect for his family life under Article 8
of the Convention

44. The mutual enjoyment by parent and child of
each other's company constitutes a fundamental element of family life,
even if the relationship between the parents has broken down, and measures
deriving from domestic law which hinder such enjoyment amount to an
interference with the right protected by Article 8 of the Convention
(see, amongst others, Johansen v. Norway, judgment of 7 August 1996, Reports of Judgments and Decisions 1996-III,
pp. 1001-1002, § 52; and Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000-VIII).
The impugned measures, namely, the German courts' decisions reducing
the applicant's right of access to his daughter and awarding exclusive
parental authority to the child's mother, amounted to an interference
with the applicant's right to respect for his family life as guaranteed
by paragraph 1 of Article 8 of the Convention. This is not in dispute
between the parties.

45. Such an interference constitutes a violation
of Article 8 unless it is “in accordance with the law”, pursues
an aim or aims that are legitimate under paragraph 2 of this provision
and can be regarded as “necessary in a democratic society”.

2. Whether the interference was justified

a. “In accordance with the law”

46. The relevant decisions had a basis in national
law, namely, Article 1634 §§ 1 and 2 and Article 1671 of the Civil
Code as in force at the relevant time.

b. Legitimate aim

47. The Court is satisfied that the contested
measures were aimed at protecting the “health or morals” and the
“rights and freedoms” of the applicant's daughter and thus pursued
legitimate aims within the meaning of paragraph 2 of Article 8.

c. “Necessary in a democratic society”

48. In determining whether the impugned measure
was “necessary in a democratic society”, the Court has to consider
whether, in the light of the case as a whole, the reasons adduced to
justify this measure were relevant and sufficient for the purposes of
paragraph 2 of Article 8 of the Convention. Undoubtedly, consideration
of what lies in the best interest of the child is of crucial importance
in every case of this kind. Moreover, it must be borne in mind that
the national authorities have the benefit of direct contact with all
the persons concerned. It follows that the Court's task is not to substitute
itself for the domestic authorities in the exercise of their responsibilities
regarding custody and access issues, but rather to review, in the light
of the Convention, the decisions taken by those authorities in the exercise
of their margin of appreciation (see Hokkanen v. Finland, judgment of 23 September 1994, Series A
no. 299-A, p. 20, § 55; and Elsholz v. Germany cited above, § 48).

49. The Court further recalls that a fair balance
must be struck between the interests of the child and those of the parent
and that, in striking such a balance, particular importance must be
attached to the best interests of the child which, depending on their
nature and seriousness, may override those of the parent (see Elzholz v. Germany cited above, § 50; and T.P. and K.M. v. the United Kingdom, no. 28945/95, § 71, ECHR-...).

50. In the present case the Court finds that the
domestic courts carefully considered the questions of access and of
awarding parental authority. They confirmed that in principle, for a
harmonious development, a child must have contact with both parents,
to the extent that this was consistent with the best interests of the
child. Thus, it was clear that maximum contact was not an unlimited
objective, and that it had to be curtailed wherever the child's welfare
required it. Accordingly, the domestic courts found that where, as in
the present case, a conflict appeared to exist between the parents,
it would not be in the best interests of the child to increase the applicant's
access rights or to award joint parental authority. They had regard
in this respect, not only to the fact that the child's mother was opposed
to any access by the applicant, but also to the applicant's insistence
on the recognition of his rights and to his disregard for the child's
psychological health (see paragraphs 12 and 23 above). When giving its
decisions on access and parental authority, the District Court relied
on expert reports and on the evidence given by the parents at hearings
and was thus in a better position than the European judges to strike
a fair balance between the competing interests involved. Furthermore,
the judgments given by the District Court had been upheld by the Court
of Appeal (see paragraphs 15 to 17 as well as 26 and 27 above).

51. In the light of the foregoing, and having
regard to the assessment of the child's best interests made by the domestic
courts, the Court is satisfied that the contested decisions were based
on reasons which were not only relevant but also sufficient for the
purposes of paragraph 2 of Article 8. It considers that, when reducing
the applicant's rights of access and awarding the parental authority
to the child's mother, the national authorities acted within the margin
of appreciation afforded to them in such matters.

52. Whilst Article 8 of the Convention contains
no explicit procedural requirements, the decision-making process involved
in measures of interference must be fair and such as to ensure due respect
of the interests safeguarded by Article 8. The Court must therefore
determine whether, having regard to the circumstances of the case and
notably the importance of the decisions to be taken, the applicant has
been involved in the decision-making process, seen as a whole, to a
degree sufficient to provide him with the requisite protection of his
interests (see W. v. the United Kingdom judgment of 8 July 1987, Series A
no. 121, p. 29, § 64; Elsholz v. Germany cited above, § 52; and T.P. and K.M. v. the United Kingdom cited above, § 72).

53. The Court notes that, in particular in the
first-instance proceedings, the applicant, assisted by counsel, had
the opportunity to present his arguments in writing and orally. As regards
both sets of appeal proceedings before the Düsseldorf Court of Appeal,
the Court notes that, contrary to the wishes expressed by the applicant,
no hearings were held. It is true that the Court of Appeal considered, inter alia
on the basis of a further report of 19 January 1995 prepared by the Elberfeld
Diaconate Institution, recent factual developments. However, the applicant
was given the possibility of putting forward any views in writing which
in his opinion would be decisive for the outcome of the proceedings.
Furthermore, the report of 19 January 1995 was only one among a number
of elements in the assessment of the case. The Court considers therefore
that the Court of Appeal could base its decisions on the first-instance
files, amended by the report of the Elberfeld Diaconate Institution
and the parents' written submissions which confirmed the existence of
ongoing litigation between them, and that no hearing before the Court
of Appeal appeared necessary.

54. In addition, the Court recalls that in cases
concerning a person's relationship with his or her child, there is a
duty to exercise exceptional diligence in view of the risk that the
passage of time may result in a de facto determination of the matter. In the present case the
Court considers that the matter was decided with special diligence,
on the basis of the necessary material, since the decisions of the Court
of Appeal were given on 9 March 1995, that is, less than five months
following the hearing before the Wuppertal District Court on 17 October
1994.

55. In these circumstances the Court is satisfied
that the procedural requirements implicit in Article 8 of the Convention
were complied with and that the applicant was involved in the decision-making
process to a degree sufficient to provide him with the requisite protection
of his interests.

56. Accordingly, there has been no violation of
Article 8 of the Convention in the present case.

II. ALLEGED VIOLATION OF ARTICLE
6 § 1 OF THE CONVENTION

57. The applicant complained that the proceedings
before the Wuppertal District Court and the Düsseldorf Court of Appeal
did not meet the requirements of Article 6 § 1 of the Convention, the
relevant part of which reads:

“In the determination of his civil rights and obligations ..., everyone
is entitled to a fair and public hearing ... by an independent and impartial
tribunal established by law. ...”

A. Arguments before the Court

1. The applicant

58. The applicant complained in particular that
the courts did not fully establish the relevant facts necessary for
a decision on the questions of access and of awarding parental authority,
and that they erroneously assessed the evidence adduced by the experts.
He further complained that there had been no hearing before the Court
of Appeal, although he had applied for such a hearing and a new expert
report had been submitted to the Court of Appeal. He also contended
that the Court of Appeal failed to make use of all the possibilities
at its disposal with a view to ordering a less drastic measure than
completely revoking his parental authority over his daughter. According
to the applicant, the Court of Appeal equally failed to remind the child's
mother of the importance of the child's contacts with both parents.

2. The Government

59. The Government contended that in the proceedings
concerning the applicant's right of access to his daughter, there were
no relevant new facts requiring the Court of Appeal to hold a hearing.
As to the proceedings concerning the exercise of parental authority,
the Government submitted that no hearing before the Court of Appeal
appeared necessary, as the main consideration had been that the strained
relations between the parents did not permit joint custody.

3. The Commission

60. The Commission found no indication that a
hearing could have added anything of relevance to the matters to be
decided by the Court of Appeal. It therefore considered that in the
specific circumstances of the present case, the appeal lodged by the
applicant did not raise any questions of fact or law which could not
adequately be resolved on the basis of the various elements at the disposal
of the Court of Appeal.

B. The Court's assessment

61. The Court re-iterates that its duty, according
to Article 19 of the Convention, is to ensure the observance of the
undertakings of the Contracting States to the Convention. In particular,
it is not its function to deal with errors of fact or of law allegedly
committed by a national court unless and in so far as they may have
infringed rights and freedoms protected by the Convention. Furthermore,
as a general rule, it is for the national courts to assess the evidence
before them as well as the relevance of the evidence which defendants
seek to adduce (see Vidal v. Belgium,judgment of 22 April 1992, Series A no. 235-B, p. 32, § 33).
However, the Court must ascertain whether, taken as a whole, the proceedings,
including the way in which the evidence was dealt with, were fair within
the meaning of Article 6 § 1 of the Convention. The Court recalls in
this respect that the difference between the purposes pursued by the
safeguards afforded by Article 6 § 1 and Article 8, respectively, may
justify an examination of the same set of facts under both Articles
(McMichael
v. the United Kingdom, judgment of 24 February 1995, Series A
no. 307-B, p. 57, § 91).

62. The Court recalls further that Article 6 §
1 requires in principle that a hearing be held. The question therefore
arises whether a departure from this principle could, in the circumstances
of the case, be justified at the appeal stage.

63. The manner in which Article 6 of the Convention
applies to proceedings before courts of appeal depends on the special
features of the domestic proceedings viewed as a whole. Even where the
court of appeal has jurisdiction both over the facts and in law, Article
6 does not always require a right to a public hearing, irrespective
of the nature of the issues to be decided. The publicity requirement
is certainly one of the means whereby confidence in the courts is maintained.
However, there are other considerations, including the right to a trial
within a reasonable time and the related need for an expeditious handling
of the courts' case-load, which must be taken into account in determining
the necessity of public hearings in the proceedings subsequent to the
trial at first-instance level. Provided a public hearing has been held
at first instance, the absence of a hearing before a second or third
instance may accordingly be justified by the special features of the
proceedings at issue (see, for example, Helmers v. Sweden, judgment of 29 October 1991, Series A no.
212-A, p. 16, § 36; and Jan-Åke Andersson v. Sweden, judgment of 29 October 1991,
Series A no. 212-B, pp. 44-46, § 23 and §§ 27-29).

64. The Court notes that hearings had been held
at first instance. The Wuppertal District Court took into account the
opinions of a psychological expert, a therapeutic pedagogue and a social
worker of the Barmen
Diaconate Institution. The decisions of the Düsseldorf Court of Appeal,
which was competent as to both the facts and the law, were based on
the files of the first-instance proceedings, the parties' new written
submissions and a new report of 19 January 1995 prepared by the Diaconate
Institution, as well as the parties' written comments. The main question
raised by the applicant's appeal concerned the strained relations between
the parents and the child's well-being. The Court shares the Commission's
view that a hearing would not have added anything of relevance to the
matters the Court of Appeal had to decide. It therefore finds that in
the circumstances of the present case the appeal lodged by the applicant
did not raise any questions of fact or law which could not be resolved
adequately on the basis of the various elements at the disposal of the
Court of Appeal. The Court further notes that the applicant was legally
represented throughout the proceedings and had ample opportunity to
submit arguments as he saw fit.

65. Accordingly, viewing the domestic judicial
proceedings as a whole, the Court finds no breach of Article 6 § 1
of the Convention as regards the alleged unfairness of the proceedings
and the lack of an oral hearing before the Düsseldorf Court of Appeal.

III. ALLEGED VIOLATION OF ARTICLE
14 OF THE CONVENTION, TAKEN TOGETHER WITH ARTICLE 8

66. The applicant further complained that he had
been a victim of discriminatory treatment in breach of Article 14 of
the Convention taken in conjunction with Article 8. He submitted in
particular that the German courts, in requiring a common proposal of
the parents to be granted the joint exercise of parental authority,
discriminate against one of the divorced spouses. Article 14 provides:

“The enjoyment of the rights and freedoms set
forth in [the] Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with a national
minority, property, birth or other status.”

67. The Commission found nothing in the case-file
to substantiate this allegation, which was contested by the Government.

68. The Court shares the view of the Commission
and therefore finds no breach of Article 14, taken together with Article
8.

FOR THESE REASONS,
THE COURT UNANIMOUSLY

1. Holds that there has been no violation of Article 8 of the Convention;

2. Holds that there has been no violation of Article 6 § 1 of
the Convention;

3. Holds that there has been no violation of Article 14 of the
Convention in conjunction with Article 8.

Done in English, and notified in writing
on 5 December 2002, pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.